Article 370: A dynamic constitutional debate

 Amit Singh Kushwaha

(The author can be reached at amitsk68@gmail.com.)

The recent discussions in the Supreme Court regarding Article 370 have sparked a vibrant debate on whether this provision can be seen as an indestructible feature of the Indian Constitution. The Constitution Bench, led by Chief Justice D.Y. Chandrachud, has been delving into the nuances of this issue, raising important questions and challenging assumptions.

Article 370, which was originally conceived as a temporary provision, granted special autonomy to the state of Jammu and Kashmir. The Constituent Assembly of J&K played a pivotal role in the creation and application of this provision. However, the Assembly ceased to exist in 1957, and with its absence came the question of whether Article 370 had assumed a permanent character.

Senior advocate Kapil Sibal, representing those challenging the abrogation of Article 370, argued that since the Jammu and Kashmir constitution of 1957 did not provide for any mechanism to alter Article 370, only the J&K Constituent Assembly had the power to do so. He contended that Parliament could not assume the role of the state legislature and unilaterally decide to truncate the provision, remove the state’s special status, and divide the state into two Union Territories.

The bench, however, expressed scepticism about the argument, questioning whether a temporary provision could become permanent due to the absence of the state’s Constituent Assembly. Chief Justice Chandrachud and Justice Kaul raised the point that the J&K constitution could not grant permanence to Article 370 in the Indian Constitution. They emphasised that the Constitution is a dynamic document, subject to amendments and changes.

Sibal’s argument was that, at present, without the state’s Constituent Assembly, there is no process available to amend or abrogate Article 370. He asserted that Parliament had no power to abrogate it after 1957. However, the court pointed out that this stance seems incongruent with the concept of a dynamic Constitution, which can be amended and changed as the need arises.

The court further questioned the implications of other constitutional amendments that applied various provisions of the Indian Constitution to J&K. They wondered what would be left of Article 370 in such a scenario. Sibal later clarified that they were arguing that the J&K legislative assembly did not have the power under Article 370(3) to amend the provision. He highlighted the interplay between the Indian Constitution and the J&K Constitution and the importance of following the prescribed procedure while enacting laws.

Sibal also cautioned against Parliament assuming the role of the Constituent Assembly, as it could lead to changes in the basic structure and fundamental rights. He believed that a Constituent Assembly played a crucial role in defining the state’s future and framing provisions to meet the aspirations of various sections of society.

The debate continues, and both sides are making their arguments based on their understanding of the Constitution’s intent and scope. The Supreme Court’s engagement in this case signifies the importance of clarifying the complexities surrounding Article 370. As the hearings progress, the court’s verdict will provide valuable clarity on this crucial constitutional matter.

In conclusion, the Supreme Court’s examination of the issue surrounding Article 370 showcases the vibrancy of India’s constitutional democracy. The spirited debate, while questioning assumptions and seeking clarity, underscores the strength and dynamism of the Indian Constitution. Regardless of the final verdict, this case will leave a lasting impact on the nation’s legal landscape, reinforcing the principles of democracy, checks and balances, and the rule of law.